Top Navigation

Green Real Estate Law JournalDiscussing current issues in construction and real estate law as they relate to sustainability, from the perspective of owners, builders, and design professionals. Published by Stephen Del Percio, B.Eng., J.D., LEED AP.

The Ugly, the Bad, & the Good: Thoughts on Greenbuild 2008

As I rode on Amtrak back to New York from Boston, I was struck by just how much fun I had over the past few days at Greenbuild. I met so many of you in person, and I can’t express in words just how much of a thrill it was to finally put a face on the virtual relationships that I’ve built since I started gbNYC. If I only take one thing away from Greenbuild, it’s probably just how powerful a tool blogging and social media will continue to be in our industry as we move forward into 2009. That being said, there were some things about Greenbuild that were better than others, and I’ll present them to you in reverse order- the ugly, the bad, and the good from Greenbuild Boston, 2008:

The Ugly: No Discussion of Liability and Risk Management Issues

Unless I missed something, not one panel discussion or education session featured any presentations regarding the risk management aspects of building green. This was an enormous Greenbuild shortcoming, in my opinion. As you may know, I practice construction and real estate law and the number of lawsuits that our group has seen in the last few months since the Wall Street meltdown has increased significantly. Litigation that might not have been necessary as recently as the summer may now mean the difference between turning a profit on a job or a development and walking away in the red. A stakeholder that, in years past, would not have asserted a claim arising out of a green project because of the fear of being branded the bad guy might not care anymore if the dollars aren’t adding up. For these reasons, I believe that failing to educate our industry about emerging green building risks is a huge mistake, particularly as we head into what will likely continue to be a particularly brutal economy through 2009.

The Bad: Not Enough Emphasis on LEED Building Performance Failures

On Friday, Alex Beam of the Boston Globe wrote a column about a recent article by building science expert Joseph Lstiburek in the journal of the American Society of Heating, Refrigerating and Air-Conditioning Engineers. The article reviewed a report that was written back in March by New York City-based Henry Gifford which dissected the USGBC-commissioned New Buildings Institute study. The NBI study was unveiled at last year’s Greenbuild and claimed that LEED buildings were performing 25 percent better than comparable buildings with respect to energy efficiency.

As Mr. Gifford sets forth in his report (available via the link below), the NBI study suffered from a few big problems, including that it only obtained data from 22 percent of the LEED-certified buildings in the country, and then compared it to a national database (CBECS) that includes buildings dating from the early part of the 20th century. However, notwithstanding the fact that the data pools were flawed from the beginning, the study’s most egregious failure was that it compared the median energy consumption for LEED buildings to the average of the pool of comparable buildings. In other words, it compared an apple to an orange and drastically shifted the results of the study to make a much more compelling case for LEED. In the piece in the Globe , Lstiburek said that he’s “gotten hundreds of e-mails about his article, mostly saying, ‘I can’t believe they let you publish this’” and called Greenbuild “six thousand looney-tunes wandering around Boston.”

It’s clear that, because points with respect to energy consumption are being awarded based on a predictive model and not actual, performance-driven data, LEED buildings are not performing as well as they should in terms of energy savings, and the building science experts who have spent decades analyzing building performance are being vilified for pointing out the shortcomings of the LEED system. Moreover, from a legal perspective, if you’re building an energy model for a LEED project and don’t have a green building lawyer looking at your contract documents, you absolutely need to hire one.

I don’t think there’s anything wrong with questioning the merits of LEED- it seems like the type of thing we should be doing in order to continue refining the system. Mr. Lstiburek and Mr. Gifford are the types of people who should be speaking at Greenbuild, either keynoting or providing stakeholder education about best design practices or commissioning procedures once a building is operational. Mobilizing the industry is important, and creating green good will is great too, but I think the USGBC is missing a big opportunity here by not embracing these types of leaders who can help improve the energy performance of our buildings- we can’t lose sight of that ultimate goal.

The Good: The Number 30,000

Greenbuild itself was incredibly well-organized and the Rafael Vinoly-designed Boston Convention Center was a great venue- there was plenty of space and I never felt like the halls, exhibit floor, or education sessions were crowded. I wasn’t exactly sure what Guitar Hero’s place was on the exhibit floor, but the sheer volume of exhibitors, products, companies, etc. was dazzling. The Greenbuild bookstore also caught my attention- lots of folks were buying and I think it’s clear that people still have a huge appetite for education about sustainable design. What’s also crystal clear is that USGBC has done a great job of rallying a group of professionals that are deeply committed to green building and developing best practices across our industry. I was impressed with the energy and collegiality of the crowd and ease with which everyone was able to network. I will definitely be back at Greenbuild next year in Phoenix and look forward to continuing the conversation with everyone that I met up in Boston between now and then.

About Stephen Del Percio

Stephen Del Percio, B.Eng, J.D., LEED AP, is an experienced construction and real estate lawyer with over a decade of experience in the New York City construction industry. He is also a frequent lecturer and author on numerous industry topics, with particular emphasis on legal issues related to green building and sustainability. He holds a B.S. in civil engineering from Columbia and worked as a project manager for Morse Diesel/AMEC Construction Management on a number of construction projects in New York City prior to attending law school. He earned his J.D. at William & Mary, where he also served as the Managing Editor of the Environmental Law & Policy Review. You can contact him at stephen@gbNYC.com.

3 Responses to The Ugly, the Bad, & the Good: Thoughts on Greenbuild 2008

It was great listening to you at the Blog Session. I wrote about that very article in the Globe, and was pleased to see that i wasn’t the only one who wrote about it. There was some mention of litigation in my partner’s session of “Green Leases.” There is now some work being done to include green language into leases for green buildings and the litigation that can arise from this addition to traditional leases. Furthermore, there is a new insurance area that is developing called “green insurance” that is directed toward the leasing community. These products and this entire area is so new, I am sure that there aren’t any experts who can speak to the topic of litigation on its own. Do I see an area of expertise for you in the future?

Thanks for the comments and thank you, Robert, for attending our session at Greenbuild. The legal implications of building green are broad and emerging- check out our green building law archive for more of our work on the subject: http://www.greenbuildingsnyc.com/tag/green-building-law/